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The Right of Getting Bail of an Arrested Person in Bangladesh—A Legal Study of Theories and Practice

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The Right of Getting Bail of an Arrested Person in Bangladesh—A Legal Study of Theories and Practice Beijing Law Review, 2014, 5, 34-48 Published Online March 2014 in SciRes. http://www.scirp.org/journal/blr http://dx.doi.org/10.4236/blr.2014.51004 The Right of Getting Bail of an Arrested Person in Bangladesh—A Legal Study of Theories and Practice Shahidul Islam, Golam Moula Department of Law, Northern University Bangladesh, Dhaka, Bangladesh Email: [email protected], [email protected] Received 26 November 2013; revised 25 December 2013; accepted 21 January 2014 Copyright © 2014 by authors and Scientific Research Publishing Inc. This work is licensed under the Creative Commons Attribution International License (CC BY). http://creativecommons.org/licenses/by/4.0/ Abstract The essential sense of the Bail in Bangladesh is to release a person from the custody of police and deliver him/her into the hands of the sureties who undertake to produce him in court whenever required to do so. The word Bail is derived from the old French verb “Bailer” which means to “give” or to “deliver”1 (Webster’s Dictionary, 1938). In common Law legal system, it is found that an ac- cused person is to be declared on bail, when he is released from the custody of the officers of the Court. The sureties are bound to produce him to answer at a specified date, time and place, the accusation against him when bail is approved by the competent court. The basic principle regard- ing release on bail is that an accused person is presumed in law to be entitled to freedom and every opportunity to look after his case, provided his attendance is secured by proper security. However, the paper focuses the idea of releasing an accused on bail in such a case that has been developed as of right of an accused in our country. Therefore, this paper gives emphasis on bail of an accused on legal analysis on theoretical and practical approach and it recommends that the bail granting authority should maintain the principles of law as well as provisions of law properly for the protection rights of an accused. Keywords Bail; Bailable Offence; Non-Balable Offence; Right of Accused; Release; Bond; Surety; Arrest; Anticipatory Bail; Criminal Justice 1. Introduction Bail has been recognized as a process of releasing of an accused from the custody of police under certain condi- 1Webster’s New International Dictionary (1938), p. 171. How to cite this paper: Islam, S., & Moula, G. (2014). The Right of Getting Bail of an Arrested Person in Bangladesh—A Le- gal Study of Theories and Practice. Beijing Law Review, 5, 34-48. http://dx.doi.org/10.4236/blr.2014.51004 S. Islam, G. Moula tions temporarily. Generally, bail is some form of property deposited to a court to persuade it to release a suspect criminal from jail, on the understanding that the suspect criminal will return for trial or forfeit the bail (and pos- sibly be brought up on charges of the crime of failure to appear). In some cases bail money may be returned at the end of the trial, if all court appearances are made, regardless of whether the person is found guilty or not guilty of the crime accused. If a bondsman is used and a surety bond has been obtained, the fee for that bond is the fee for the insurance policy purchased and is not refundable. In some countries, granting bail is a common practice in the court. Even in such countries, however, bail may not be offered by some courts under some cir- cumstances; for instance, if the accused is considered likely not to appear for trial regardless of bail. Legislatures may also set out certain crimes to be not bailable, such as capital crimes. In this sub-continent especially in Bangladesh, bail has been developed as of fundamental rights of an ac- cused. Bail has been defined by Black’s Law Dictionary in the language that “security required by a Court for the release of a prisoner who must appear at a future time”. The same dictionary further says that, as verb Bail means “to obtain the release of oneself or another by providing security for future appearance”2 (Garner, Black’s Law Dictionary, 1927). Bail is a safety measures which is given for the due appearance of a person who is ar- rested or imprisoned to get his or her temporary release from the legal custody (Akkas, 2009).3 According to Concise Oxford Dictionary bail means a security for the appearance of prisoner on giving which the accused pending trial. In the same dictionary the meaning of bail as a verb is giving as to admit to bail, to release on security given in appearance. In the Random House Dictionary bail means— 1) Property given, as surety that a person released from custody will return at an appointed time; 2) The person giving it; and 3) The privilege of being released on bail.4 Thus the term bail includes in itself concepts— Firstly, the person who stands surety for appearance of the man in court whose released is the purpose of the bail; Secondly, the amount of money offered as security for appearance of that man; and Thirdly, the position or privilege of being released on bail. Bail is therefore presupposes a moderation, that is, deprivation of liberty of the person to be released and when he is released from such restraint or custody he is said to be released of on bail. 1.1. Categories of Bail Provisions as regards bail can be broadly classed into two categories: 1) Bailable cases and 2) Non-bailable cas- es. 1) Bailable Cases: The grant of bail is a matter of course. It may be given either by the police-officer in charge of a police-station having the accused in his custody or by the court. The release may be ordered on the accused executing a bond and even without sureties.5 2) Non-Bailable Cases: In non-bailable cases, the accused may be released on bail, but no bail can be granted where the accused may be released grounds to be guilty of an offence punishable either with death or with imprisonment for life. But doesn’t apply to a) a person under sixteen years of age; b) a woman; or c) a sick or infirm person. As soon as reasonable grounds for the guilty cease to appear, the accused is entitled to be released on bail or on his own recognizance; he can be also released, for similar reasons, between the close of the case and the de- livery of the judgment. 2Brayan A. Garner, Black’s Law Dictionary (2009), p. 150. 3Dr. Sarkar Ali Akkas, Law of Criminal Procedure. (p. 243). Dhaka, Bangladesh, Ankur Prokashani. Cited in A C Sen(1979) (Mitra’s legal & Commercial Dictionary) Eastern Law House, Kolkata. p. 98. 4Random House Dictionary (College Edition), p. 134. 5Section 436(1), the Code of Criminal Procedure, 1898. 35 S. Islam, G. Moula 1.2. Categories of Offences The Criminal Procedure Code has under section 4 (b) categorized offences as bailable and non-bailable. 1) Bailable offence The Criminal Procedure Code provides that in the case of bailable offences the person accused has an inde- feasible right to grant of bail subject of course to satisfactory sureties being offered, if sureties are considered necessary.6 The provisions of the section are mandatory, and the Court or the officer in Charge of the police sta- tion, as the case may be, is bound to release the person in custody who is accused of a bailable offence, on bail, provided he is prepared to give it, or on recognizance. The seriousness of the offence is immaterial for the pur- pose of bail, provided that the offence is bailable. Where the accused is charged with a non-bailable offence but it is found that the offence, if any, made out on the facts was bailable, the accused must bailed out. The Court has no discretion in the matter. Where the High Court ordered that bail may be granted by the Magistrate after recording some evidence and the Magistrate found that the charge against the accused could be only for bailable offence, he was right in admitting the accused to bail without recording any evidence. 2) Bail by Police-Officer An officer-in-charge (OC) of a police station is bound to grant bail in bailable cases, and in improper refusal to do so will amount to a violation of duty. A person arrested by the police under the Criminal Procedure Code, 1898 should be given the option of release on reasonable bail being provided.7 The bail should not be excessive, and no needless impediment should be placed in the way of being admitted to bail. The intention of the law is that in such a case the man is ordinarily to be set at liberty and it is that in such a case the man is ordinarily to be set at liberty and it is only when he is unable to furnish such moderate security, if any, required of him, as is suitable for the purpose of securing his appearance before the Court pending inquiry, that should remain in de- tention. 3) Non-Bailable Offence Whenever a Court requires an accused person to furnish a bail bond, the terms of the bail should normally be for attendance and other conditions should not be imposed. This would be more in case where the accused is called upon to be of good behavior; since there is a separate and distinct provision of law for this purpose. It would be improper to impose such condition in a bail bond and to ignore the provisions of the Code, which pro- vide for such cases.
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